Aitken v Blue Mountains City Council [2010] NSWLEC 1340

Land and Environment Court of New South Wales

CITATION : Aitken v Blue Mountains City Council [2010] NSWLEC 1340

APPLICANT James Aitken PARTIES : RESPONDENT Blue Mountains City Council

FILE NUMBER(S) : 10607 of 2010

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Advertising sign Business identification sign

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 64 - Advertising and Signage LEGISLATION CITED: Blue Mountains Local Environmental Plan 2005 Blue Mountains Development Control Plan No 21 - Advertising and Information Signage Land and Environment Court Act 1979

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 17, 23 November 2010

DATE OF JUDGMENT: 14 December 2010

APPLICANT Mr K Webber LEGAL REPRESENTATIVES: Wilshire Webb Staunton Beattie RESPONDENT Mr A Seton Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

14 December 2010

10607 of 2010 Aitken v Blue Mountains City Council

JUDGMENT 1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the determination of the Blue Mountains City Council (the Council) to refuse development consent for the erection of an illuminated wall sign on the western elevation of a building at 7 Great Western Highway Valley Heights (lot 200 DP1033450) (the site). 2 The site is located on the northern side of the Great Western Highway and has a single storey building housing three businesses, a real estate office, a café and a gift shop. The proposed sign is triangular in shape, and 4 sqm in area. A canvas sign previously in the same location as that proposed in this application contained the words: "Fine Food Great Coffee CAFÉ" 3 To the west and north of the subject site is bushland. Immediately adjoining the site to the west is a vacant lot. To the east of the site are residential properties, and further to the east along Great Western Highway are commercial premises including a bus depot, a service station, and a Bunnings hardware store. 4 The issues between the parties are whether the development is compatible with the existing and desired amenity and visual character of the area; whether it would result in an unacceptable proliferation of signage; and whether it would have an adverse impact on the amenity of future residential development to the west and north of the site. Background 5 The three businesses operating on the site do so pursuant to development consent X/05/0595 granted on 1 November 2006 for the conversion of the then existing use. The development consent included consent to one wall sign and three above awning signs on the southern elevation of the building. The hours of operation of the development were limited by condition 13 to 8.30am to 10.00pm seven days a week. 6 On 20 February 2008 the Council granted development consent X/1268/2007 for additional signage, being a pylon sign, and a canvas sign on the western elevation of the building. Condition 2 provided: To protect the visual amenity of the neighbourhood and city, signage shall be limited to the details included with the application. Any illumination of the pylon sign is limited to the hours of operation for the development and is to be minimised so as to ensure no adverse impact on adjoining properties. Flashing signs are not permitted. The temporary sign on the western wall of the building is to be removed within three (3) months from the date of consent. Planning Controls 7 The site is zoned Living-Bushland Conservation under the Blue Mountains Local Environmental Plan 2005 (the LEP). Clause 32 provides that in the Living-Bushland Conservation zone, advertising structures are permissible with consent; development for the purpose of "commercial premises", "refreshment rooms" and "shops" is prohibited.